The Rosenberg Case in Perspective-Its Present Significance

Robert L. Stern

In April 1951, Julius and Ethel Rosenberg were convicted under the Espionage Act of 1917 for conspiring to obtain and turn over to agents of the Soviet Union secret information as to the construction of the atomic bomb. This information had been obtained in 1944 and early 1945. The testimony as to the continuance of the conspiracy until 1950, when the Rosen-bergs were indicted, after the enactment of the Atomic Energy Act of 1946, related in large part to their efforts to conceal their prior conduct and to avoid arrest until they could escape to the Soviet Union.[1]

They were sentenced to death by District Judge Irving Kaufman, now long a member of the Court of Appeals for the Second Circuit. Before imposing sentence, Judge Kaufman had consulted Circuit Judge Frank and District Judge Weinfeld, who disagreed with each other as to the death penalty. He also urged the United States Attorney "to solicit the opinion of the Department of Justice." The reply was, "There were differences all around among them, but capital punishment for one or both was in not out."[2] Judge Kaufman determined that the death sentences were called for because:

My participation in the case, which I argued in the Supreme Court on June 18, 1953, in my capacity as Acting Solicitor General of the United States, was during its last seven days from June 13-19. I will not attempt to summarize everything which occurred. Many volumes and articles have been written on both sides of the case.[4]

Perhaps the most objective analysis, which cited and reviewed most of the others up to 1983, is The Rosenberg File: A Search for the Truth, a 578-page volume by Ronald Radosh and Joyce Milton. Professor Radosh describes his introduction to the case as a young supporter of the Rosenbergs who believed that, after the FBI and other government records were disclosed at the insistence of the Rosen-bergs' sons, the innocence of their parents would be established. The subsequent study of many thousands of those pages by Radosh, by then a professor of history, concluded that, even though he still regarded himself "as a man of the democratic Left," "historical truth also had its claims even if some of that truth was unpleasant."[5]

Radosh and Milton found the evidence compelling that Julius Rosenberg "managed over a period of years to become the coordinator of an extensive espionage operation whose contacts were well placed to pass on information on top-secret military projects in the fields of radar and aeronautics," and that "Ethel Rosenberg probably knew of and supported her husband's endeavors, and it seems almost certain that she acted as an accessory."[6]

The authors believe that "the Rosen berg spy ring was surprisingly productive, given its origins, but it was never the primary conduit of U.S. atomic secrets to the Soviets," that "the data stolen by David Greenglass, while not without significance, was less important than that provided by Klaus Fuchs"[7] and that "the government was well aware of this." They assert tha:[8]

Defendants, of course, were no less culpable because someone else had preceded them in stealing and disclosing vitally important confidential information. Moreover, for law enforcement officials to prosecute and seek heavy penalties in order to deter others from committing similar serious crimes is not improper. That cannot be said however of the charge, which the authors thought clearly established, that "the precipitous arrest of Ethel Rosenberg was made for one reason and one reason only: so that she could be held hostage in order to pressure her husband into breaking his silence."[10]

Nevertheless, the reason given by Judge Kaufman for imposing death sentences suggests that he might not have done so if he had known that the secrets of the atomic bomb had previously been turned over to the Soviet Union by other spies.[10a] The death sentence rested upon a literal interpretation of the Espionage Act of 1917,[11] which permitted capital punishment for espionage in time of war. The stolen information was turned over to Soviet agents during the last years of World War II, when Soviet Russia was an American ally, not an enemy. That was probably not the type of situation Congress had in mind when it passed the statute. By the time of the indictment in August 1950, however, North Korea had invaded South Korea, with the approval and support of the Soviet Union, and United States forces were engaged.

After the Court of Appeals in New York, speaking unanimously through Judge Jerome Frank, had affirmed the conviction and sentences, 195 F. 2d 583 (1952), the Supreme Court denied the petition for certiorari challenging the Rosenbergs' conviction and sentences on October 13, 1952,[12] and a petition for rehearing on November 17.[13] A motion to vacate the judgment and sentence, filed under 28 U.S.C. sec. 2255, was subsequently denied by the District Court and the Court of Appeals, and certiorari as to these orders was denied by the Supreme Court on May 25, 1953 with Justices Black, Frankfurter and Douglas dissenting.[14] An order of the Court of Appeals staying the execution was vacated at the same time. "Execution of the sentence was set for the week of June 15th by the District Judge," and "two further motions to vacate" the sentences were denied by the District Court and the Court of Appeals early in June.[15]

On June 12, an application to the Supreme Court to. grant a stay was filed with Justice Jackson, the Circuit Justice for the Second Circuit, who referred it immediately to the full Court with a recommendation that it be argued orally.[16] Although Justices Black, Frankfurter, Jackson and Burton would have granted oral argument, a majority of the Court (including Justice Douglas) refused to hear such argument or to grant a stay on Monday, June 15, the last session of the 1952 Term. A petition for rehearing of the May 25th denial of certiorari was denied at the same time. Thus the Court had denied the defendants' requests for relief six times by that date.[17]

Justice Frankfurter's notes state that on a conversation with him on Tuesday, June 16, Justice Jackson had said "that it was perfectly understood yesterday at conference that in view of the Court's denial of habeas corpus no individual Justice to whom application was made would overrule the Court's determination."[18] Such an informal, and on its face, reasonable agreement at the conference could not have anticipated that new lawyers would present an entirely new issue in the few days remaining. Nor need it be treated as precluding a Justice to whom such a question was presented from acting judicially. Justice Douglas did not so regard it, and no other Justice indicated that the subsequent agreement was a reason for his vote to overrule Douglas's subsequent stay order. Indeed, there is no reason to believe that any member of the majority would have voted differently, agreement or no agreement.

Justice Frankfurter's memorandum had pointed out that "when it was clear that the Rosenberg case would be heard because of the memorandum [Douglas] kept it from being heard." According to Justice Frankfurter, Justice Jackson also had stated that:

Frankfurter's notes and the Court's orders indicate that was true, that on several occasions when Jackson and Burton indicated that they would join in providing the number of votes necessary to grant a hearing by the Court, Douglas voted the other way. Professors Parrish and Cohen[20] expressed opposing views as to whether Jackson was justified in believing that Douglas was improperly motivated. I am impressed by Professor Cohen's caveat that "it is impossible, of course to rebut [and I add, or prove] conclusively an assertion about Douglas's state of mind."[21] Whether or not the other Justices were annoyed at Justice Douglas's conduct, and some of them may well have been, there is no reason to believe that they would otherwise have voted in favor of the Rosen-bergs.

It was in this context that on Monday, June 15, Emanuel Bloch of New York City and John Finerty of Washington D.C. ,who had represented the defendants from the beginning of the case, applied to Justice Douglas for a stay. On the next day, after the Court had adjourned for the summer, a petition for habeas corpus and a stay was filed with Justice Douglas by different lawyers, Fyke Farmer of Nashville and Daniel Marshall of Los Angeles. They had had nothing to do with the case or the defendants, but purported to act for one Edelman, who described himself as "next friend" to the Rosen-bergs, but who also had no connection to them.[22] In the usual course, the application should have been submitted to Justice Jackson, who was the Justice assigned to the Second Circuit in which the case had been brought and tried. Justice Douglas's autobiography states that he "referred it to Jackson, who instantly responded by saying that I should consider it in light of the lateness of time and my imminent departure for the Far West."[23] These lawyers presented a defense which several months before they had submitted to Bloch and Finerty, who were not impressed. The Espionage Act of 1917,[24] upon which the indictment had rested, did not require jury approval of a death sentence. The new claim was that this provision had been superseded for atomic energy cases by the provisions of the Atomic Energy Act of 1946[25] which did require jury approval. "The crux of the charge [against the Rosenbergs] alleged overt acts committed in 1944 and 1945,"[26] before that statute was enacted. The alleged conspiracy continued, however, until 1950.

Justice Douglas allowed Farmer and Marshall, and government counsel in opposition, to argue this question on Tuesday. The Justice thought the point was a substantial one which needed further consideration.[27] He asserted that:

He did not mention the effect of a provision in the second statute which on its face seems to provide the contrary. Section 10 (b) (6) of the 1946 Act stated that "This section shall not exclude the applicable provisions of any other laws, except that no Governmental agency shall take any action under such laws inconsistent with the provisions of this section."[29]

After Douglas completed a draft opinion, according to his autobiography:

On the morning of Wednesday, June 17, Justice Douglas denied the stay requested by counsel for the defendants, Bloch and Finerty, since it raised only "questions already passed upon by the Court."[31] But the Justice granted the stay requested by counsel for Edelman. His order stated:

Differing versions have appeared as to the details of what transpired before the Chief Justice ordered the Supreme Court to reconvene to review Justice Douglas's order. One report, based on triple hearsay in an FBI memorandum, says that Justice Jackson arranged for Attorney General Brownell to see Chief Justice Vinson, apparently before Justice Douglas's order and opinion were issued. My own recollection is that the Attorney General and I called upon the Chief Justice at his apartment to request that the Court be reconvened in time to review Justice Douglas's ruling before it effectively had postponed the order that the Rosenbergs be executed that Friday. I had thought that this occurred after we knew of the Douglas order, but my memory (though not hearsay) is obviously not infallible after 36 years, and there is no reason to doubt the honesty of the writer of the FBI memorandum. We obviously had some reason to believe that Douglas was about to grant the stay. But it is of little consequence whether the Attorney General decided to ask the Chief Justice to reconvene the Court after the Chief was informed by Justice Douglas himself that he had "almost decided to issue the stay," or after the stay issued a few hours later. Douglas was not concealing the fact that he was giving the application serious consideration. I have no recollection that Justice Jackson had previously spoken to the Attorney General or to the Chief Justice on the subject, but I am skeptical. I might not have known about that. I am quite sure Jackson was not at the meeting.

Although for attorneys on one side of a case to argue the merits before a judge without the knowledge or appearance of the opponents is unethical, this principle does not necessarily apply to an expert motion that a hearing be promptly held when time is urgent. Temporary injunctions or stays or orders dissolving stays are not uncommonly granted for short periods until a full court can be convened and can give a matter more thorough consideration. The Attorney General was merely asking the Chief Justice to convene the Court the next day, not to decide anything or to set aside Justice Douglas's order on his own. There would not have been time for the normal filing of a written application with notice to the opposing party or lawyers, who had themselves obtained a hearing before Justice Douglas on short notice the day before. Of course they were notified when the order to reconvene was issued.

Certainly as a matter of less hurried hindsight it is not at all clear to me why immediate reversal of the Douglas order was so important, why a delay of a few months would have been so serious. As Justice Douglas subsequently wrote:

The opinion of the Chief Justice for the Court was not so optimistic. He estimated that "the stay which had been issued promised many more months of litigation in a case which had otherwise run its full course."[34]

Why did the majority believe it so important that the execution of the Rosenbergs not be postponed? The reasons appeared in opinions in which the majority of six joined. Justice Clark's opinion stated:

Justice Jackson's opinion declared:

The last batch of such motions, submitted by the Rosenbergs' counsel, had been denied that Monday. In normal course, the Court adjourned for the summer. To allow lawyers who had no connection with a case or the parties, on behalf of a "stranger" to the defendants, then to reopen the case with a new issue was not merely highly unusual. To permit prolongation by outsiders of a case which had been before the Court so often and so recently would, in the Court's words, run counter to the Court's "duty to see that the laws are not only enforced by fair proceedings, but also that the punishments prescribed by the laws are enforced with a reasonable degree of promptness and certainty."[37]

These factors would have justified a refusal to reopen the case on the application of a complete outsider. The Court did not, however, merely dispose of the case on that procedural ground. It explained why it would not go along with Justice Douglas's order that the case be resubmitted to the District Court.

Justice Douglas and other commentators give the impression that the motivation for what was asserted by others to be the persecution of the Rosenbergs was the nation's anti-Communist hysteria, to which six members of the Supreme Court succumbed. There was also a vast amount of contemporaneous publicity on the other side, not only by Communist or Communist influenced organizations but by strong advocates of civil rights and opponents of capital punishment. Radosh and Milton years later declared that "Bloch had to know that the Communist element, which by now dominated the Committee [to Secure Justice], could only be satisfied by the Rosenbergs' martyrdom."[39] Justice Douglas's "own impression was that Bloch never raised the point because the Communist consensus of that day was that it was best for the cause that the Rosenbergs pay the extreme price. That is a harsh thought; but it must be remembered that Stalin was still in power."[40]

Radosh and Milton's analysis of the contention that Bloch's failure to press the Farmer-Marshall argument on the Court had an ulterior motive leans toward supporting that position but still suggests uncertainty on their part. I am not sure what to conclude from their statement that

All this of course is highly speculative, although there is good reason to believe that the Communist Party was less interested in saving their lives than in benefiting from widespread publicity that the United States government was persecuting them.[43] A more likely conclusion, at least in my opinion, is not that Bloch was devious, but that he never advanced the argument presented to him several times by Fyke Farmer and Daniel Marshall because he believed the point had no merit. As to that, he was not alone. His two co-counsel, John F. Finerty and Gloria Agrin, agreed at least at the beginning, as did six members of the Supreme Court as well as government counsel. It is highly unlikely that any of the Justices would have changed their minds if they had heard additional argument in the case. This justifies Bloch's judgment that the point was not a winning one. It does not mean that the point should not have been argued. Counsel should not abandon points which persuade one Supreme Court Justice and leave two others in substantial doubt. No sensible lawyer would, if he could foresee that result.

The case was argued on June 18, 1953 by me for the government and by Bloch, Finerty, Marshall and Farmer for the Rosenbergs. There was no written transcript, and I have no memory of what was said except for one comment by Justice Black that I did not appear to be as thoroughly prepared as I usually was. That, of course, was correct, since no one had known until the day before that an argument would be held. As to that, Justice Black's dissenting opinion stated:

In rejecting the argument that the 1946 statute superseded the older one, Justice Clark's concurring opinion invoked principles which the Court had followed in a number of prior cases in which a criminal defendant might have violated two somewhat different but overlapping statutes. As stated in Justice Clark's concurring opinion for six Justices:

Whether a statute is to be construed as superseding another is, of course, a matter of legislative intent. Congress did not leave its intention in doubt in the Atomic Energy Act of 1946. As the opinion states:

Certainly this provision of the 1946 statute should be controlling when the critical conduct charged against the defendants occurred before the passage of that Act. As Justice Clark's opinion further stated:

At this point the opinion cited an article written several years before the Rosenberg case by the former counsel to the Senate Subcommittee on Atomic Energy, who stated that the phrase "applicable provisions of any other laws, while general, must be read as pointing particularly to the Espionage Act."[48] After quoting this statement, the Government's brief, for which I was responsible, reviewed the legislative history of the Atomic Energy Act in some detail, and concluded that it supports a literal interpretation of Section 10 (b) (6). Justice Douglas's opinions did not mention this provision at all, much less its history.

Justice Frankfurter's dissent,[49] however, relies on other passages from Mr. Newman's article as suggesting the contrary. Even though enough time has passed to permit me to view the subject reasonably objectively, I recognize that I still may not be an impartial observer. There would seem to be no reason at this late date to review the historical material in depth in an effort to attempt to determine which interpretation of the statute was correct, or to do more than state that the statutory language supports Justice Clark's opinion for the Court, and that reasonable judges and lawyers have disagreed, possibly depending on their original biases. If a majority of the Court had thought the question doubtful, they might have decided the case differently, or at least allowed more time.

The assumption of some commentators that the Justices who composed the majority of the Court and persons who agreed with them were acting in bad faith or with political or other improper motivation, is in my opinion, no more justified than would be the contrary position that all those who believed the death sentence unwarranted were Communist sympathizers.

The answer to the question as to which of two criminal statutes applies to a conspiracy which occurred both before and after the second statute was passed will ultimately depend upon the language and history of the two statutes. It is not likely to recur in the precise circumstances presented by the Rosen berg case. It can no longer arise with respect to the two statutes involved. The death penalties were removed from the Atomic Energy Act in 1969, primarily because the Supreme Court in United States v. Jackson 390 U.S. 576 (1968), had invalidated a similar provision in the Federal Kidnapping Act. The Court there held that "permitting imposition of the death penalty only upon defendants who assert their right to be tried by a jury, discourages assertion of, and thereby imposes an impermissible burden upon the exercise of, a constitutional right."[50] The anomalous result was that a provision designed to insure that defendants could not be sentenced to death without a jury's approval had the effect of invalidating death sentences completely.

More recently, the death penalty provisions of the Espionage Act were found by the Ninth Circuit[51] to be inconsistent with the principles approved by the Supreme Court in Furman v. Georgia,[52] and Gregg v. Georgia,[53] Those cases established that capital punishment can be constitutional only when the governing statute provides the sentencing authority with adequate standards and information to guide its exercise of discretion. The Court of Appeals noted that the Department of Justice agreed that the Espionage Act clearly did not satisfy that standard.

The aspect of the Rosenberg case which still has significance is the Court's determination that lawyers having no connection with a case or its parties should not be permitted to participate to the extent of raising questions which counsel for the parties either deliberately or inadvertently failed to present.

With respect to this, Justice Jackson stated, for the majority of six:

As the underscored sentence indicates, the Court found it necessary to decide the new point because at the end it was also pressed by the Rosenbergs' counsel.

The significance of the Court's disapproval of what happened in Rosenberg becomes apparent if one considers what the effect would have been if the Court had said the opposite--that any lawyer has a right to present, and require a court to pass upon, any argument in any case in which a lawyer who represents no party may be personally interested, particularly after the available remedies had been exhausted in all the appellate courts.

Lawyers not representing parties to a case have, of course, long been able to present their positions as amici curiae, usually by obtaining leave of court, or, in some courts, the consent of the parties. Lawyers may also, of course, move on behalf of non-parties with an interest in a litigation to intervene and thereby become parties. And, as Justice Douglas subsequently stated in discussing the Rosenberg case in his autobiography:

This in substance was what Justice Jackson had said in his Rosenberg opinion about prisoners who are incapacitated or isolated from counsel,[56] and what Chief Justice Burger said in his opinion in Gilmore v. Utah (quoted below) about a person unable to seek relief on his own behalf. But the Rosenbergs had counsel acting on their behalf, and neither Edelman nor Fyke Farmer, who were unconnected to them in any way and did not know them, could satisfy such a test unless anybody can claim to be everybody's "next friend." Even though courts have not construed the phrase very strictly to require a real "friend," it cannot be read that broadly without becoming a nonsensical fiction. Thus apart from the special circumstances in which outside help is essential, outside lawyers do not have the status of parties. They are not entitled to make either new motions on behalf of a party, to request relief after the parties have exhausted all available remedies, or to ask that a case be reopened to consider questions not previously raised by competent counsel.

I recognize that few lawyers are likely to try to interject themselves into cases in which they do not represent an interested party otherwise than by moving for leave to intervene or file, an amicus brief. In recent years the problem seems to have arisen only in the rare situations in which a defendant does not wish to challenge a death sentence, presumably because he fears a life in prison even more. In Gilmore v. Utah,[57] the Supreme Court held that a mother had no standing to object to a death sentence imposed upon a competent adult son who through his attorneys and in person made "a knowing and intelligent waiver" of his right to appeal. The concurring opinion of Chief Justice Burger and Justice Powell declared, citing Rosenberg that a court would have jurisdiction over a "next friend" application "only if it were demonstrated that [the party] is unable to seek relief in his own behalf."

More recently, in Whitmore v. Arkansas,[59] decided in April 1990, seven members of the Court agreed that the limitation of the jurisdiction of federal courts to "cases" and "controversies" precluded institution of suits by plaintiffs who had no personal relationship to the issue presented. A prisoner sentenced to death was there found to have no constitutional standing to challenge a death sentence imposed upon another prisoner who had made it plain that he did not desire to appeal from the sentence against him. Chief Justice Rehnquist, speaking for the Court, cited Justice Jackson's concurring opinion for six Justices in the Rosenberg case as discountenancing the

The Chief Justice added that:

A Supreme Court decision allowing lawyers to attempt to represent any stranger would have opened a wide door to the prolongation of capital and perhaps other types of litigation. If that were generally permitted, neither the public, the bar, nor the courts could be certain when a case was concluded. High-minded lawyers, as well as some others, might have strong feelings about various types of cases, though probably not many would go as far as to emulate the tactics of Fyke Farmer and Daniel Marshall on behalf of the Rosenbergs. The Supreme Court's refusal to approve such a procedure thus protected a public interest which overall may be more important than anything else involved in the Rosenberg case. I suspect that few, if any, lawyers or judges would go so far as to believe that such a procedure for prolonging cases by outsiders should be open in all types of litigation, including criminal.

The three dissenting Justices and doubtless other critics of the Rosenberg decision have insisted that such a limitation should not apply to death sentences. Justice Douglas's response to the suggestion that the Rosenbergs

were raising the question too late concluded:

In response to the similar argument advanced in the Whit-more case that "a relaxed application of standing principles" was warranted when a death penalty was imposed, Chief Justice Rehnquist declared that:

Unquestionably, petitions for habeas corpus can raise constitutional contentions not previously presented which would otherwise have been untimely. The unique feature of the Rosenberg case, however, was that the new contentions were raised by lawyers having no connection with the defendants or the case. To say that such a remedy may be invoked if a criminal sentence is unlawful" means that a court must act on anything a lawyer claims to be unlawful. This would open the door for any lawyer to require a court, and eventually the whole tier of trial and appellate courts, to consider every such claim even if it has no merit. The policy that lawsuits should eventually terminate must apply to some extent to capital punishment as well as to other types of cases or sanctions, even though perhaps not as strictly.

A different decision in the Rosenberg case on this point might have enabled some capital cases to be continued even longer than they now are. Whether that is deemed desirable is likely to depend on one's attitude toward capital punishment. If one is opposed to the death penalty, the proper remedy should be to abolish it, not to permit capital cases to be prolonged indefinitely.

The imposition of death sentences on the Rosenbergs may well have been the result of bad luck. The most important factor was probably the assignment of the case to then District Judge Kaufman, who was a tough judge for criminal defendants generally as well as for the Rosenbergs. If Klaus Fuchs had been captured and tried in the United States instead of England, Judge Kaufman might have known that he rather than the Rosenbergs and Greenglass was primarily responsible for the disclosure of atomic bomb secrets to the Soviet Union, and thus for the loss of American lives during the Korean War.[64] And only between the fall of 1949 and 1954 was the Supreme Court (between 1940 and 1969) so composed as to have been likely to have overridden Justices Black, Frankfurter and Douglas.[65]

What I knew at the time and what I have learned since leaves me with no doubt as to the Rosenbergs' guilt. I was not at all sure that a death sentence was warranted, particularly for Mrs. Rosenberg. Even though we were at war in 1944 and 1945, when the atomic secrets were transmitted to it, Russia was not then an enemy of the United States but an ally. The reason given by Judge Kaufman for imposing such a sentence was substantially undermined by the subsequent disclosure that Klaus Fuchs had almost certainly turned over much more damaging information to the Soviet Union at or about the same time. But the severity of a sentence within lawful limits is not within the province of appellate judges or lawyers to decide. (As to this the federal law, at least, is no longer so rigid under the new Sentencing Commission Act.) I am not persuaded that the capital punishment provision of the 1946 Atomic Energy Act governed a conspiracy which in large part was effectuated before 1946. I would not be so sure if all or most of the acts had occurred thereafter, even though the literal words of sec. 10(b) (6) still seem to me to be decisive.

Despite the charges made against many members of the Court, in part by each other, I am not convinced that the actions of any of them, most of whom I knew, were improperly motivated by either a liberal or conservative bias, or personal motives or dislikes which undoubtedly existed. This cannot, of course, be proved or disproved. Even though the Justices differed in ability and outlook, there is no reason to doubt that they were acting with judicial integrity. Nor, at least in retrospect, am I persuaded that time was sufficiently of the essence to justify the pressure for an immediate execution of the defendants without allowing lawyers and judges time to give careful consideration to a new question. But I can understand why judges who had rejected requests for relief over and over again during the preceding months should--entirely apart from the presumed pressures from anti-Communist public opinion--feel that further delay would merely be giving in to dilatory tactics, contrary to the reasonable public interest against undue delay in enforcement of the law.

1. Rosenberg v. United States, 346 U.S. 273, 295-296 (1953).
2. M. Parrish, "Cold War Justice: The Supreme Court and the Rosenbergs," 82 Am. Hist. Rev. 805, 811 n (1977).
3. 346 U.S. at 312.
4. A leading volume supporting the conviction is The Implosion Conspiracy (1973) by Louis Nizer who relied mainly on the trial transcript. On the other side, see Invitation to an Inquest (1965 and 1983) by Walter and Miriam Schneir (1965 and 1983), Was Justice Done? (1956), by Malcolm P. Sharp, and Fatal Error (1989), by Joseph H. Sharlitt. For articles disagreeing as to the conduct of members of the Supreme Court see M. Parrish, "Cold War Justice: The Supreme Court and the Rosenbergs," 82 Am. Hist. Rev. 805 (1977), and "Justice Douglas and the Rosenberg case: A Rejoinder," 70 Corn. L. Rev. 1048 (1985); W. Cohen, "Justice Douglas and the Rosenberg Case: Setting the Record Straight," 70 Corn. L. Rev. 211 (1985).
5. Ronald Radosh and Joyce Milton, The Rosenberg File: A Search for the Truth. 1982. Page xiv.
6. Id. at 450.
7. Fuchs, an atomic scientist, had escaped from the United States to Great Britain where he was eventually convicted, imprisoned for a number of years, and released to lie for many years in East Germany. He undoubtedly knew and disclosed to the Soviet Union a great deal more than did the Rosenbergs, David Greenglass, and their other associates.
8. Radosh, Milton, supra note 5 at 451.
9. Id.
10. Id.

10a. Recently released information indicates that the secrets the Rosenbergs passed to the Soviet Union were more valuable than previously believed. In tapes recorded after his forced retirement, but withheld from his earlier memoirs, Nikita Khruschev stated expressly: "I was part of Stalin's circle when he mentioned the Rosenbergs with warmth. I cannot specifically say what kind of help they gave us, but I heard from both Stalin and Molotov, then Minister of Foreign Affairs, that the Rosenbergs provided very significant help in accelerating the production of our atom bomb. Let this be a worthy tribute to the memory of those people. Let my words serve as an expression of gratitude. . . ." Time, October 1, 1990.

11. 40 Stat. 217-219 (1917), now 18 U.S.C. sec. 794.
12. 344 U.S. 838.
13. 344 U.S. 889-90.
14. 345 U.S. 965.
15. 346 U.S. at 279.
16. Id. at 280.
17. Id. at 293.
18. Filed in the Library of Congress Manuscript Division.
19. Justice Frankfurter's memorandum, p. 8, Addendum, p. 4.
20. Parrish, Cohen, supra note 4.
21. 70 Corn. L. Rev. at 231.
22. 346 U.S. at 282.
23. W. Douglas, The Court Years, 80 (1980).
24. 40 Stat. 217, 218-19 (1917).
25. 60 Stat. 755, 766-767 (1946).
26. 346 U.S. at 295.
27. Id. at 313-321.
28. Id. at 312.
29. 60 Stat. 768 (1946), as to which see pp. 85, infra.
30. The Court Years, p. 81.
31. 346 U.S. at 283.
32. Id. at 321.
33. The Court Years, p. 80.
34. 346 U.S. at 287.
35. Id. at 293.
36. Id. at 291.
37. Id. at 287.
38. Id.
39. Radosh, Milton, supra note 5 at 409.
40. The Court Years, p. 79.
41. Radosh, Milton, supra note 5, at 409-410.
42. Id.
43. Id. at 327-29, 407-09.
44. 346 U.S. at 296.
45. Id. at 294-95.
46. Id. at 295.
47. Id. at 295-96.
48. J. Newman, "Control of Information Relating to Atomic Energy," 56 Yale L.J. 769, 790 (1947).
49. 346 U.S. at 307-09.
50. Sen. Rept. 91-533, 91^st Cong., 1^st Sess. (1969).
51. In United States v. Harper, 729 F. 2d 1216, 1225-26 (1984).
52. 408 U.S. 238 (1972).
53. 428 U.S. 153, 185 (1976).
54. 346 U.S. at 291-292.
55. The Court Years, p. 79.
56. Id. at 291.
57. 429 U.S. 1012 (1978).
58. Id. at 1014.
59. 58 USLW 4495.
60. Id. at 4499.
61. Justices Marshall and Brennan, who dissent from all death sentences, thought it more significant that in Rosenberg the majority "addressed the application on its merits." (58 USLW 4504, n. 7). But this gives no weight to the majority's disapproval of the procedure invoked by the "next friend" in that case.
62. 346 U.S. at 312-13.
63. 58 USLW at 4498-99.
64. In light of the recent disclosure in the Khruschev tapes, see supra note 10a, the Rosenbergs' role in the development of the Soviet Union's atomic bomb may be greater than was previously believed.
65. In 1949 liberal Justices Frank Murphy and Wiley Rutledge died and were replaced by Tom Clark and Sherman Minton. In 1953, within a few months of the Rosenberg decision, Chief Justice Vinson died and was replaced by Earl Warren, and in 1955 John Harlan replaced Robert Jackson.